Sec. 80.7. Procedure to be followed in the event of denial of access to records or denial of exception from disclosure

(a) The secretary designates the counsel to the secretary as records appeals officer and may designate other members of the counsel's office as assistant records appeals officer(s) to decide appeals from a denial of access to records or denial of the request for an exception from disclosure under the Freedom of Information Law. The records appeals officer shall prescribe the duties of and supervise the assistant records appeals officer(s). The address of the records appeals officer is: Counsel to the Department of State, One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231-0001.

(b) Denial of access to requested records and denial of exception from disclosure by the records access officer shall be in writing, stating the reason for the denial and informing the requester of his right to appeal the denial to the records appeals officer. The written notice of denial shall also contain the name, the title, business address and business telephone number of the records appeals officer. Notice of such denial shall also be given to the agent or authorized representative of the requester, if any.

(c) If the requested records are not provided as required in section 80.4(d) of this Part, the records shall be deemed denied.

(d) A person who has been denied access to a requested record by the records access officer shall have the right to appeal the denial to the records appeals officer within 30 days of the denial.

(e) A person who has been denied an exception from disclosure, pursuant to section 80.6 of this Part, shall have the right to appeal the denial by filing a written statement of appeal from the determination of the records access officer with the records appeals officer, within seven business days of receipt of the written notice denying such request.

(f) In order to perfect a proper and timely appeal, the written statement of appeal received by the records appeals officer from the appellant must set forth:

(1) the date and the location of the request for access to the department's records, or request for an exception from disclosure;

(2) the records, identified with particularity, to which the requester was denied access or was denied an exception; and

(3) the name and return address of the requester.

(g) The records appeals officer shall, within 10 business days, excluding the day of the proper commencement of the appeal, transmit a copy of the appeal to the Committee on Open Government and determine the right of access to records or of exception from disclosure. Where the records appeals officer decides the denial was improper, the records appeals officer shall order the records access officer to allow the requester access to such records or shall order the records access officer to except such records from disclosure. Where the records appeals officer decides the denial was correct, the records appeals officer shall state the reason or reasons therefor and mail a copy of the decision to the appellant on or before the 10th business day of the aforesaid period by ordinary mail. In addition, the records appeals officer shall immediately forward a copy of the decision to the Committee on Open Government.

(h) A final denial of access or a final denial of exception from disclosure to a requested record by the records appeals officer is subject to court review as provided for under the Freedom of Information Law and the records appeals officer may not disclose the requested record or the record for which an exception from disclosure has been requested until ordered to do so in a final judgment of the court.